A. A child may be held or taken into custody:
(1) by a law enforcement officer when the officer has evidence giving rise to reasonable grounds to believe that the child is abused or neglected and that there is an immediate threat to the child’s safety; provided that the law enforcement officer contacts the department to enable the department to conduct an on-site safety assessment to determine whether it is appropriate to take the child into immediate custody, except that a child may be taken into custody by a law enforcement officer without a protective services assessment being conducted if:
(a) the child’s parent, guardian or custodian has attempted, conspired to cause or caused great bodily harm to the child or great bodily harm or death to the child’s sibling;
(b) the child’s parent, guardian or custodian has attempted, conspired to cause or caused great bodily harm or death to another parent, guardian or custodian of the child;
(c) the child has been abandoned;
(d) the child is in need of emergency medical care;
(e) the department is not available to conduct a safety assessment in a timely manner; or
(f) the child is in imminent risk of abuse; or
(2) by medical personnel when there are reasonable grounds to believe that the child has been injured as a result of abuse or neglect and that the child may be at risk of further injury if returned to the child’s parent, guardian or custodian. The medical personnel shall hold the child until a law enforcement officer is available to take custody of the child pursuant to Paragraph (1) of this subsection.
B. A child shall not be taken into protective custody solely on the grounds that the child’s parent, guardian or custodian refuses to consent to the administration of a psychotropic medication to the child.
C. When a child is taken into custody by law enforcement, the department is not compelled to place the child in an out-of-home placement and may release the child to the child’s parent, guardian or custodian.
D. When a child is taken into custody, the department shall make reasonable efforts to determine whether the child is an Indian child.
E. If a child taken into custody is an Indian child and is alleged to be neglected or abused, the department shall give notice to the agent of the Indian child’s tribe in accordance with the federal Indian Child Welfare Act of 1978.
F. Any person who intentionally interferes with protection of a child, as provided by Subsection A of this section, is guilty of a petty misdemeanor.
HISTORY:
1978 32A-4-6, enacted by Laws 1993, ch. 77, § 100; 2005, ch. 189, § 41; 2009, ch. 239, § 35; 2015, ch. 51, § 2.
Amendment Notes.
The 2005 amendment, effective June 17, 2005, in Subsection B, deleted “by the department” after “taken into custody”.
The 2009 amendment, effective July 1, 2009, rewrote (A); added (B); and redesignated former (B) through (D) as (C) through (E).
The 2015 amendment, effective June 19, 2015, substituted “this subsection” for “this subsection A of this section” at the end of A(2); added B; and redesignated former B through E as C through F.
Applicability.
Laws 2009, ch. 239, § 71 makes the provisions of this act applicable to all children who, on July 1, 2009, are on release or are otherwise eligible to be placed on release as if the Juvenile Public Safety Advisory Board Act had been in effect at the time they were placed on release or became eligible to be released.
Notes to Decisions
Liability.
Deputies assisting in an investigation of possible child neglect were not entitled to qualified immunity from a civil rights claim because a reasonable officer would not have believed that an emergency situation existed requiring their immediate entry into a parent’s home. Chavez v. Bd. of County Comm'rs, 2001-NMCA-065, 130 N.M. 753, 31 P.3d 1027, 2001 N.M. App. LEXIS 61 (N.M. Ct. App. 2001).
Research References and Practice Aids
Cross references.
Permanency hearings; permanency review hearings, 32A-4-25.1 NMSA 1978.